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Is Winning an Election a Get-Out-of-Jail-Free Card?
01:02:34
Donald Trump's once-daunting legal challenges continue to melt away, as Special Counsel Jack Smith plans his resignation and Manhattan DA Alvin Bragg lays out options for putting the hush money case on indefinite pause. Dan and Melissa Murray, cohost of Strict Scrutiny, discuss all the latest, including the cultural significance of the United Healthcare shooting, the fading resistance to Trump's Cabinet nominees, and why Kimberly Guilfoyle getting the nod to be ambassador to Greece is a twist worthy of the finest reality TV.
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- [00:03]
Jon Favreau
Let's face it, this election proved we're living on two different Internets, which has resulted in two different realities. Algorithms have trapped us in our own information bubbles. And as if things couldn't get weirder, Elon Musk is basically running the American government. Not ideal. I'm Jon Favreau, host of the Offline podcast with Max Fisher. And despite the name of the show, it's clear that none of us are actually offline. Definitely not me and Max. Every week we're breaking out of our digital echo chambers to better understand the right wing media machine and grabbing our shovels to rescue our fellow Americans who've fallen down the rabbit hole that Elon Musk helped dig. We cover everything from the rise of the manosphere to the media personalities shaping our feeds and our elections. It's a deep dive into the Internet, but without the trolls and the pop up ads. Doesn't that sound nice? Search offline, wherever you get your podcasts and on our YouTube channel. Now, today's presenting sponsor is Simplisafe Home security. Here's a not so festive fact. FBI data shows that property crimes, including break ins and burglaries, spike over holidays. As you prepare for the gatherings and celebrations ahead, it's essential to ensure your home is secure. Simplisafe's advanced security system and 247 professional monitoring agents mean Simplisafe is always keeping watch, even when you're busy with holiday plans. And right now you can save 50% off your new Simplisafe system, their biggest deal of the year. But you need to claim your discount today. You guys know by now we love Simplisafe. John Lovett installed one all by himself. It has protected him well over these years. Easy to use, very affordable old school systems. They only take action when someone's already inside your home. That's too late. Simplisafe has active guard outdoor protection which prevents crime before it even happens. If someone's lurking around or acting suspiciously, those agents see them in real time, talk to them directly, set off your spotlights and even call the police. All before they've had a chance to break in. Plus, no long term contracts, no cancellation fees, and it's around a dollar a day. For all this protection, Simplisafe is extending its massive Black Friday deal for our listeners this week. Only you can get 50% off any new system with a select professional monitoring plan. This is your last chance to claim their best offer of the year. Head to simplisafe.com crooked that's simplisafe.com crooked there's no safe like simplisafe.
- [02:43]
Dan Pfeiffer
Welcome to Pod Safe America. I'm Dan Pfeiffer.
- [02:45]
Melissa Murray
And I'm Melissa Murray.
- [02:46]
Dan Pfeiffer
As our listeners know well, Melissa is the co host of our excellent legal podcast Strict Scrutiny, a law professor at NYU and an MSNBC legal analyst. Melissa, it is always great to have you on Pod Save America.
- [02:57]
Melissa Murray
Thanks for having me back. Really great to be here.
- [02:59]
Dan Pfeiffer
Well, you're one of the smartest people I know. Not just on legal issues, but on all things. And we have plenty to talk about in the legal world and I would say very little of it is good. But let's start with the news because there's a lot out there these days. Before we get into the latest with Trump and his nominees, let's talk about the United Healthcare killing. This story is showing some real staying power, both for predictable reasons. It's a cinematic murder with spooky clues and a mysterious antihero.
- [03:21]
Melissa Murray
And I believe a handsome anti hero also should be said. I think that is a big.
- [03:26]
Dan Pfeiffer
I was going to leave. I mean he seems attractive to me. I'm very comfortable saying that. But teach their own.
- [03:32]
Melissa Murray
I would say would. Yes, Correct, correct.
- [03:35]
Dan Pfeiffer
But also for less predictable ones, namely the way the story has launched a conversation about our for profit healthcare system. Jon Jon and Tommy talked about the discourse around the murder on the Tuesday pod, but that was before we knew anything about the accused killer. Do you have a take on this story and why it's become such a cultural moment?
- [03:51]
Melissa Murray
Well, I think for all of the reasons that you all have rehearsed on the pod. Health care sucks. Health care sucks in this country. Obamacare was a huge step forward, but it still leaves in place largely insurance based system of health care provision which is really difficult for lay people to navigate even in the best of circumstances. And the circumstances of this killing makes clear how many people are just absolutely bedeviled by having to deal with insurance, getting denied insurance coverage for things that they need, whether it's cancer treatment or things for their children when their children are ill. And it's just a really inhumane system. And it has sparked this conversation in the context of a really inhumane murder because it really goes to some kind of experience that obviously feels universal for a lot of people.
- [04:47]
Dan Pfeiffer
I really sort of hate the discourse about the discourse and yeah, so I just going to, I'm going to stipulate at the beginning of this that murder is bad. Celebrating murder also bad.
- [04:57]
Melissa Murray
Yes.
- [04:57]
Dan Pfeiffer
A healthcare system where the bonuses of the CEO and the value of the stock are tied to denying cancer treatments is also quite bad. But I do think that everyone in politics, and in particular Democrats, should take note of the reaction here. And I don't mean the trolliest people online who are saying the most outrageous things and getting, you know, maybe chasing clout or saying things. I just mean the fact that in a time when it's very hard to capture the nation's attention, this has done so. And that tells us something about how people feel. And it is tied in a lot of ways to what happened in the election.
- [05:35]
Melissa Murray
I think that's exactly right. People are really frustrated. Healthcare provision is, at bottom, an economic issue. Individuals are bankrupted by their medical debt. The Biden administration was taking steps to deal with that at the end of the summer. So it's a big deal. And I do think the fact that the discourse has shifted now that the suspect has been identified and captured and people are actually talking about other things a little more humorous, a little more human, like whether they would put money on his books in prison if he is convicted. And I think that sort of shows like people are thinking about this in human terms. I don't think people are discounting that, you know, someone has died here or someone who has a family, a wife and children, and this is a tragedy for that family. But I think what some of this discourse is speaking to is that health care provision is an actual tragedy for many more Americans, too.
- [06:29]
Dan Pfeiffer
That's right. And I think it is like health care is at the core of this specific issue. But the reaction to me is more, says a little bit more about how people are pissed at the system. And I define the system broadly. It includes healthcare companies, includes drug companies, include Wall street banks. It includes the companies that are price gouging on gas in groceries and eggs and bacon or wherever else. It includes politicians, it includes the media, it includes Hollywood.
- [06:55]
Melissa Murray
It's an anti institutionalist moment.
- [06:58]
Dan Pfeiffer
That's right. And Trump weaponized that in a very cynical and dangerous way. And as Democrats think about our path forward, we have to recognize the moment in which we are existing. It can't be a moment in which we are defending institutions, that we are the protectors of the status quo. It has to be. And I think the reaction here should suggest to us that we need to be bolder, bolder in our messaging, bolder in our response, bolder in our policy prescriptions to speak to that moment. Because if we don't, these are the moments in which historically demagogues and authoritarians have taken power. We've just had that happen here. And so we have to understand that a normal. This tells us the reaction. This is not normal. And it tells us that we need something more than a typical response to it.
- [07:39]
Melissa Murray
Yeah, I think that's right. And I think one thing that's been really interesting is the discussion over Obamacare in the wake of this. And, you know, I'm an older person at this point, so when Obamacare was introduced in 2009 as a policy prescription and then actually enacted, it was actually radical. I think now, many years later, yes, we can understand that it was essentially a kind of reflection form of the existing system, but that was a really big deal. So I don't want to lose sight of that. But it's been a number of years, it's been decades. It feels like people are on board with Obamacare. Maybe this is the moment to push even further and to think about a system that would address some of the things that even Obamacare cannot.
- [08:22]
Dan Pfeiffer
Yeah, Obamacare is at its most popular. You're exactly right. It's hard for people who were not around in politics or paying attention to politics like them to understand how radical an idea it was. Because the core principle of Obamacare, for as imperfect as the process was to get it done, was that there is a right to affordable health insurance in this country. It did not achieve that for every single person. But that was the goal, and there are reasons it didn't. The Supreme Court made it worse by affecting the Medicaid mandate. Republican governors made it worse by refusing Medicaid expansion in their states. There were problems in how the law was written. That's problems in the implementation of it. But it changed the conversation. And now the question is, what comes next? And I hope that as a party, Democrats engage in that in a bold way. And it's not as simple as Obamacare plus to Medicare for all. Right, there's got to be something. There's got to be a broader conversation. Close everything in the middle.
- [09:15]
Melissa Murray
Yeah, I think that's exactly right.
- [09:17]
Dan Pfeiffer
Independent journalist Ken Klippenstein published the shooter's full manifesto, which is really more of a memo, I would say. I don't know if you read it, but what did you make of the decision to publish it versus mainstream media outlets initial refusal to do so.
- [09:28]
Melissa Murray
So I actually had to dig around and find Ken. Ken Klippenstein's substack in order to read this, which I have to say, like, I kind of expected more of the media. I don't think you have to glorify it, but it does seem newsworthy to publish it in full and maybe you can have disclaimers around it sort of explaining, you know, it's provenance, like whether it can be attributed to the suspect, all of those things. But it does seem like there is a public interest in having it in full. And I did read it, and I think it accords with this moment where we're talking about what is the average person's experience of health insurance. And here is someone who is really railing against the system and this institution because he's had apparently a really terrible time.
- [10:14]
Dan Pfeiffer
Yeah, I don't really have a super hot take on whether publishing is the right thing or the wrong thing. I am generally of the view that this idea that the mainstream media can serve as gatekeepers to protect people from information is long past because just the words Ken Clemency and substack suggest that the New York Times, the Washington Post, the Wall Street Journal aren't the arbiters of what is journalism, what people get like. I'm sympathetic to the long held view that publishing these manifestos can inspire copycats and so everyone can make their own decision about it. But it's just this, this idea that you're keeping it from the public. I remember thinking about this same conversation around the publication of the Steele dossier just now that we're, now that we're just fully back in 2017 mode here. You know, it's just, it's going to get out there and sometimes maybe it makes sense for larger journalistic institutions who have the capacity to provide context and research with it can do that, as opposed to trying to pretend like it doesn't exist. So people, if anyone wants to read it, they're going to be able to read it whether the Washington Post wants them to or not. Or I don't want you to blame the Post, but any media outlet.
- [11:20]
Melissa Murray
Well, I mean, I think that's a great point. I mean, one of the things I think the mainstream media did very well, for example, all of the different Trump indictments, is to provide a guide to lay readers about how to contextualize and interpret these documents that might feel very unfamiliar to individuals who aren't lawyers. I think there could be a similar kind of contextualization, as you say, for something like this. There's all this discussion about the Unabomber's manifesto and the alleged suspects connections to that writing. I mean, all of that could be, I think, importantly contextualized by journalists, by reporters in ways that advance the discourse rather than allowing more disinformation to flourish.
- [12:05]
Dan Pfeiffer
Yeah, Just you have expertise that, like when there's this big debate about, you know, Elon Musk is on Twitter saying we're all. You're all the media now. And Jim Vande of Axios is giving these thundering speeches saying that journalism is a special thing. And if you. Journalism is a skill set.
- [12:20]
Melissa Murray
Show me.
- [12:21]
Dan Pfeiffer
Show your work is a skilled experience. That's right. Use it right. That's your competitive advantage against anyone with access to the Internet and a Twitter account or a substack is to use your expertise, use your sources, your resources, your disposable to contextualize things. And so I think they probably missed the boat here. Okay, let's pivot to the more pedantic news of a bunch of clowns joining the Cabinet. Okay. This time last week, it seemed like Fox Weekend anchor Pete Hegseth was about to follow Matt Gates and become the second major Trump nominee to withdraw. But the tides have turned. Iowa Senator Joni Ernst, who is a key voice on defense issues who had been openly skeptical of Hexith, put out a statement on Monday saying she supports him for at least for now. And as of today, it looks like Steve Doocy's understudy is on the path to becoming the Secretary of Defense. According to Mark Caputo at the Bulwark, Ernst changed her mind after coming under intense pressure from Trump's MAGA allies. If Hegseth can get through despite his inexperience and the reams of stories about his personal failings, does this mean that the Senate is basically just gonna be a revolving door for all of Trump's nominees?
- [13:23]
Melissa Murray
Probably yes. I mean, probably yes. You know, I actually said this on strict scrutiny and caught a lot of strays for it. But I think the fact that Matt Gaetz sort of bowed out, rightly so, and Pam Bondi came in and was just not Matt Gaetz, and people aren't really kicking the tires on that. There's been discussions of how much of a loyalist she has been, what she has done to advance the Trump as Attorney General of Florida, but not the kind of deep, deep digging that you would expect. And I think that's largely because folks are tired. I mean, like, they are flooding the zone with a lot of stuff. And I think expecting everyone to get, like, a full and proper vetting that is incredibly skeptical and high quality, I think is just going to be unlikely. And that's really disappointing. I mean, that is what the Senate is supposed to do. But as a general matter, the Senate isn't dealing with on a regular basis. Nominees of this caliber, I mean, like, all of them are really, really questionable. And I just don't think that's business as usual. I will say one thing for Donald Trump that, you know is worth mentioning. This is a man who rewards loyalty. And, you know, I'm not saying the Democrats should do it, but it's really interesting to me how the Democrats are always like, who's the best person for this job? Like, like, you know, meritocracy, where he's just like, who's my guy? Who's been here for me and who am I gonna reward? Like Harmeet Dhillon to head civil rights in the doj? It's not because she has been good on traditional civil rights. It's because she's been a loyalist. And she's been good on the Trump administration's vision of civil rights, which is about equal rights for aggrieved, outspoken conservatives. And he rewards that.
- [15:13]
Dan Pfeiffer
Yeah, I'd say a couple things on this one. You're never going to make money betting on the courage and integrity of Senate Republicans. Right. Most of these people are always. Are going to get.
- [15:21]
Melissa Murray
Damn it. That's how I was going to send my kids. It is.
- [15:25]
Dan Pfeiffer
Yes. It is not. It is. Basically, you're. The House always wins in that game. It's like playing slots in Vegas. And. And so mostly people are always going to get through, no matter how bad. I mean, a bunch of Trump, really bad Trump appointees got through last time. Betsy DeVos, Jeff Sessions, most of them are going to get through here. It would be notable if none of people rarely get voted down. They just generally have to drop out before the process takes. And my imagine is these Republicans feel like they have, you know, they could maybe oppose one or two maybe, but what's the upside for them?
- [15:58]
Melissa Murray
Well, don't you think that the Senate really relies on journalism to do a lot of the digging and the surfacing of all the crap so that there is pressure on the nominee to sort of like, come to terms with the fact that they are objectly unqualified and not great for this position and bow out. And it just seems like the more stuff that gets surfaced, people are just like, digging in and like, like there is no shame.
- [16:20]
Dan Pfeiffer
Well, this does speak to the diminishing influence of the media in terms of holding at least Republicans accountable.
- [16:30]
Melissa Murray
Yeah.
- [16:31]
Dan Pfeiffer
The fact that it. The fact that the New York Times or CNN or the Washington Post surface some information about Pete Hegseth or Pam Bondi or someone else is often seen as evidence of their fitness for the job. Not the opposite. Because it. Because in this world, those are the bad guys and Republicans really are defined by their enemies.
- [16:51]
Melissa Murray
Yeah.
- [16:52]
Dan Pfeiffer
And if the New York Times is against you and the CNN's against you, that's. That is a sign. That's. That's validation of your bona fides as opposed to the opposite.
- [16:58]
Melissa Murray
Do you remember the days when Zoe Baird and Kimba Wood could get, like, just completely axed simply because they hadn't paid taxes on their nann? I mean, how quaint does that seem right now? Like that's nothing.
- [17:12]
Dan Pfeiffer
My former boss, Tom Daschle, who was nominated to be the Secretary of Health and Human Services of Barack Obama, had to drop out because on his. The law firm for which he worked provided him a free car service as part of his salary and he did not. As part of his benefits package and he did not cite that as income on his taxes and he was ditched by Democrats.
- [17:35]
Melissa Murray
Yeah.
- [17:36]
Dan Pfeiffer
Now what is different here than the Obama age and the Clinton age is that now the. The filibuster does not exist for executive appointments.
- [17:44]
Melissa Murray
Right.
- [17:44]
Dan Pfeiffer
So we had 59 Senate seats back then when Obama was trying to get dash all through. We would need at least one Republican to do it. If you lose a couple of Democrats your toes. Trump only needs 50 or 53. So, like, his bar of success is lower, but it seems like mostly people are going to get through. Maybe Tulsi Gabbard will be one. And what's interesting. I think what's interesting in the Ernst thing is that Trump's theory and the theory of his MAGA allies like Steve Bannon and Charlie Kirk is that making Ernst publicly embarrass herself sends the message that resistance is futile.
- [18:14]
Melissa Murray
No, I think that's exactly right. Which is so unfortunate because say what you will about Joni Ernst, and there's a lot you could say she has actually been really good about advancing this question of how the military can address and rid itself of sexual violence. And this is a terrible stain on that legacy.
- [18:36]
Dan Pfeiffer
The important context for Ernst's decision is that she is up for reelection in 2026.
- [18:41]
Melissa Murray
Yeah.
- [18:41]
Dan Pfeiffer
In a state that Donald Trump has won by double digits the last three elections. She is in very little danger, absent some cataclysmic change in the political environment, to lose reelection to a Democrat.
- [18:54]
Melissa Murray
It's the primary.
- [18:55]
Dan Pfeiffer
She could. Yeah, she could lose in the primary. And that's what these people are threatening, is that if she opposes Trump, she becomes an anti Trump person. She becomes this cycle's Jeff Flake or Mitt Romney. She's not gonna make it.
- [19:07]
Melissa Murray
No. They will find some car dealer in Dubuque and they will run him against her and Donald Trump will come out for him and he'll win and she'll be toasted.
- [19:16]
Dan Pfeiffer
Right. Maybe he'll win. Right. Like Brian Kemp would suggest otherwise. But that puts her. That's her only. The only risk to her reelection is in the primary.
- [19:25]
Melissa Murray
Brian Kemp is also a dude, so she also has a gender problem.
- [19:29]
Dan Pfeiffer
That's true. Iowa does not. Although it has gotten better. A great history of electing women statewide. But I think what is interesting here on the strategy is that Susan Collins and Lisa Murkowski have very different political calculuses than Joni Ernst. They're sort of defined as not anti Trump. Murkowski, somewhat anti Trump, but not pro Trump. Right. Like they're somewhat defined by their opposition to Trump on some things. Not named Brett Kavanaugh. And then Tom Tillis is up for reelection in a state where Republicans. He has more leverage because if they ditch Tom Tillis for the car dealer from Wilmington. From Wilmington, North Carolina, that person could very well lose. Why Tom Tillis would be favored in that race. Right. Like, they, they saw that, that in a. In Iowa, whoever is on the Republican ticket is almost certainly winning in North Carolina. That's less of a guarantee. But, you know, do you think there's some downsides to strategy, the bowling strategy?
- [20:25]
Melissa Murray
No. Because it's working. Right. I mean, like, this is what they do and it works. The real question is, would it work for everyone? Like Democrats? Sometimes it works, but more often it doesn't. But it seems to work for them. And again, I think Trump is a kind of singular figure in the Republican Party. And the idea of him against you, I think, really does inspire fear among some of these sort of rank and file Republicans. And they're just loath to step out of line. And I think we're seeing that here.
- [20:58]
Dan Pfeiffer
Part of the reason why this strategy likely works, although he has little margin for error, because Collins, Murkowski, and Mitch McConnell, who's never running for anything again and doesn't exactly love Trump, that. That puts you at 50. Exactly. So then you only have one more to lose. And that's. So they're. They're still operating with more with little margin. But the reason why it works better than it used to is the only Senate Republican representing a state that Kamala Harris won is Susan Collins.
- [21:24]
Melissa Murray
Yeah.
- [21:26]
Dan Pfeiffer
And so just. You have a lot of leverage in this, and most of them are representing states that Donald Trump won by large margins.
- [21:34]
Melissa Murray
Yeah.
- [21:34]
Dan Pfeiffer
So they don't feel pressure. They only. They. Almost no one ever feels pressure from the middle anymore. They only feel it from their ideological flank. On the Republican side, we still have a bunch of Democrats who are in battleground states who are in a different situation.
- [21:47]
Melissa Murray
No, I mean, that's the way it is with judges, too. I mean, the fact that you only need a majority, a simple majority to confirm a judge means that they can advance these really ideological picks. And all they have to do is just, like, shore up their base and they can get people in line because they do have this following in these individual states. And if you go against them, they'll run someone in a primary and you're toast. And I think this partly explains Susan Collins and Brett Kavanaugh. Not entirely, but it was a harbinger, I think, of things to come.
- [22:17]
Dan Pfeiffer
I'm sure that the way in which the Republicans bullied Joni Ernst is probably very frustrating to Democrats who wish Biden could have done something similar to Joe Manchin.
- [22:27]
Melissa Murray
Yeah.
- [22:27]
Dan Pfeiffer
But it doesn't really work that way because Joe Manchin's in a state that Donald Trump had won by nearly 30 points the time before, and so he could easily switch parties, which did actually happen once, for this is where I am dating myself. But in the year 2001, George Bush was super pissed at Vermont Senator Jim Jeffords for opposing him on taxes. So they attacked him and in the ultimate pettiness, disinvited him from the White House ceremony honoring the teacher of the year, who happened to be from Vermont. And Jim Jeffords switched parties and gave the majority in the Senate to the Democrats.
- [23:00]
Melissa Murray
I remember when that happened.
- [23:02]
Dan Pfeiffer
I don't think that's gonna happen in this case, but there are risks to it.
- [23:04]
Melissa Murray
Yeah.
- [23:05]
Dan Pfeiffer
Which is sort of maybe why he treats Susan Collins a little bit with kid gloves. Because not that I think she's gonna leave parties, but she has leverage that Joni Ernst does not.
- [23:12]
Melissa Murray
That was a really great moment. That was truly the fuck around of times, the find out of times. And, yes, I wish we could see that again. Good stuff. Good stuff.
- [23:21]
Dan Pfeiffer
What? That was, you know, like six months before nine. Eleven. I remember it was a very. That was probably the last moment of the 90s. Right. Even though we were well into 2001, that was the end of the 90s. Right. Yeah.
- [23:30]
Melissa Murray
I remember where I was.
- [23:31]
Dan Pfeiffer
90S politics.
- [23:32]
Melissa Murray
Like, someone was like, and Jim Jeffords is going to caucus with the Democrats. And they were so excited. Yes.
- [23:45]
Jon Favreau
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- [27:18]
Dan Pfeiffer
We booked this engagement a long time ago. You've been on our calendar to be on Pod Save America. And I know you were crushed not to be able to come on to talk about the prospect of Matt Gaetz for Attorney General. But he does have a consolation prize for you and America. Let's take a listen. I could not be more excited to join the One America News family. The best reporting, the best analysis, and the most in depth coverage of the Trump administration is going to come from our team. I've got the sources, I've got the insights, and there is such a spirit of optimism to unlock the opportunity of America. There's no place that's going to cover it better than One America News. Melissa, how excited are you for anchorman Matt?
- [27:58]
Melissa Murray
Not very. I will say I didn't realize that's what OANN stood for. I've just been calling it oan and I didn't realize it was One America News Network. So thank you. That was good information. I didn't know and now I do and I can't unhear it. But yeah, I actually preferred him better on the Cameo platform.
- [28:21]
Dan Pfeiffer
Are you thinking of getting yourself a Matt Gaetz message for some of your Strix co hosts?
- [28:26]
Melissa Murray
Well, Leah Lippman has an upcoming birthday and I did submit a request.
- [28:33]
Dan Pfeiffer
Oh, interesting.
- [28:33]
Melissa Murray
Unclear if it will be granted, but.
- [28:36]
Dan Pfeiffer
Yes, we'll have to find out what's in his OANN contract.
- [28:39]
Melissa Murray
I guess. I mean, yeah. But I do think, you know, that was a good platform for him. As the ladies on Hysteria said, cameo is like only fans for ghouls. And I kind of like that.
- [28:53]
Dan Pfeiffer
It's very good. I think it's just is probably like this is ridiculous. He is ridiculous. If I were to try to divine some larger point out of Matt Gaetz ending up on OAN at the end of this, which we should note is the third tier right wing pro Trump network is a distant third to Fox and Newsmax. So you are far down the line here. It probably says something about where political power exists in the Republican Party that he is more likely to build a following and maintain his relevance doing right wing propaganda than some other than running it being at a think tank or running for local office or something else. Is that this is the consolation prize for being attorney general is news anchor is just kind of probably does underscore the idea that and Gates has always understood this, that attention is power in MAGA politics. So he's looking for attention.
- [29:50]
Melissa Murray
Don't count out one American news network. I think this is actually a very savvy move for them to build their audience like they're making a move to be a player. Watch this space. And I don't say that with any admiration. I genuinely think that's likely to happen.
- [30:06]
Dan Pfeiffer
I would love to know what he's getting paid for that.
- [30:08]
Melissa Murray
Oh, I think. Well, I mean he's already wealthy. He comes from a wealthy Florida family and he probably doesn't need it. But I'm sure that they are paying him enough to make this worth his while. I mean this is a 9 to 5 like he's getting paid.
- [30:24]
Dan Pfeiffer
I kind of thought they had disappeared because when they were kicked off DIRECTV back in the day, there's another 2017 moment. But I sort of thought oan it was sort of like on the downward slope. But maybe this is their comeback.
- [30:36]
Melissa Murray
Their comeback is there is a redemption arc here. Like redemption in the loosest sense of the word. And again I say watch this space.
- [30:44]
Dan Pfeiffer
All right. We will do some. Okay. One other Trump appointment I want to get your take on. We learned yesterday evening that the next ambassador to Greece would be none other than Kim Guilfoyle. The appointment comes after a report in the New York Post that Guilfoyle and her fiance, Donald Trump Jr. Broke up after several years. I know you, like me, are a fan of reality tv, and this has real Bravo vibes. So let me clear out the space and hear your thoughts on Kim Guilfoyle, Greek ambassador.
- [31:10]
Melissa Murray
I'm so glad you asked this. This was. First of all, why Grease, right? Was Percy Jackson unavailable? Does she have a connection to Greece? I don't know, but I think you're exactly right if she is ready. This is an amazing Bravo show about a plucky television journalist teetering around Athens in extraordinarily high heels and, you know, putting back together the shards of her broken heart after a tumultuous relationship and breakup. Like, this is gonna be fantastic. Like, if she can lean into it, like, you can have her setting up the embassy in Athens, hosting all of these parties, like, you know, kebab night. It would be fantastic. And I would watch, like, 10 out of 10 would watch. And, yeah, like, I. Like this is a consolation prize. I think they think it's a consolation prize. I'm like, girl, this is your redemption arc. Like, this is the best thing that could happen to you. Like, being ambassador to Greece is a zillion times better than being Mrs. Donald.
- [32:10]
Dan Pfeiffer
Trump Jr. Well, I would definitely stipulate that that is probably true. This is the.
- [32:14]
Melissa Murray
Probably.
- [32:16]
Dan Pfeiffer
This is the Bravo version of the Netflix show the Diplomatic. I also think there's a little bit of hush money here. Like, who knows what she knows?
- [32:27]
Melissa Murray
Oh, yeah. Yeah.
- [32:28]
Dan Pfeiffer
Who knows what she knows? She's been around everything. She was accused of some sketchy. Of involved some sketchy fundraising.
- [32:34]
Melissa Murray
The best is yet to come.
- [32:37]
Dan Pfeiffer
And this is a woman who went from being married to Gavin Newsom to almost married Donald Trump Jr. Who knows what chapter three is here, right? You can stick her in Grease for a few.
- [32:44]
Melissa Murray
It's only going up, right?
- [32:46]
Dan Pfeiffer
Yes. Like, I think they are probably grateful she accepted this job, because who knows what she was going to say. Because if you. We don't need to get into the gossip here, but if you read the New York Post report, Donald Trump is Jr. Has moved on quickly to a younger.
- [32:58]
Melissa Murray
A younger model.
- [32:59]
Dan Pfeiffer
It seems to be an apple not falling far from the tree trait there.
- [33:04]
Melissa Murray
I mean, I think this is great for her. It's probably a better outcome than she.
- [33:09]
Dan Pfeiffer
Deserves, that's for sure. Okay. All right. Trump's threat on Meet the Press this weekend to jail. Members of the January 6 committee has raised pressure on the Biden White House to consider some sort of preemptive pardons for people like Anthony Fauci, Liz Cheney, and anyone else who's on Cash Patel's literal enemies list. We've talked about the politics of these pardons on recent pods, but it probably makes sense for us to get thoughts from an actual legal expert. So let's start with the basics. Can a president really pardon people for crimes that. For which they have not been charged?
- [33:39]
Melissa Murray
Yes. See Gerald Ford pardoning Richard Nixon. Yes. Like very recent example of this. There is a Supreme court case from 1866 called Ex Parte Garland that basically says the president's authority to pardon is unlimited except in cases of impeachment. So you can't just sort of pardon for things for which the President has been impeached, but it can otherwise extend to every offense known to the law and able to be exercised either before legal proceedings are taken or during the pendency of legal proceedings or after conviction and judgment, which is usually the case. But again, Ford pardoned Nixon before Nixon had been formally convicted or even indicted on any crime. And again, it was sort of to claire the air, like, end this long national nightmare, as Ford said. But, you know, there is an example, to be very clear, this question of a preemptive pardon of that sort has never been confirmed or blessed by the United States Supreme Court. So there may be some question, a first impression, were this to be challenged. Again, the Ford pardon of Nixon was never challenged and did not make it to the court. But there is a lot of case law that suggests that the pardon power is broad, is absolute. And the most recent of this case law is the immunity decision from last summer that said as much. So, you know, yes, I think Donald Trump could do this. I think Joe Biden could do this. And we'll see what the Supreme Court has to say about it. I imagine it will. It might depend the courts. The court's response might depend on whether a Democratic or Republican president is advancing. No, no, I mean, I know it. I know, I know, I know. Like, I'm so jaded in my, my dotage.
- [35:22]
Dan Pfeiffer
Let's just. I want to put a finer point on this. So I'm not going to, I'm going to make up an imaginary person for this example. But let's say Biden does a bunch of preemptive pardons for people who worked in his administration, did the things that he asked them to do, did them legally, and then so it's a blanket pardon. And then we find out a year from now that this imaginary person had just made up, embezzled money from the federal government, that person could not be prosecuted if it happened during the period of time in which the pardon was issued.
- [35:52]
Melissa Murray
I mean, it depends on how the pardon is written. If it's sort of broadly any crimes during this period of time, like the Hunter Biden pardon, for example. I think that's a real question. I think that's a real. I mean, obviously that isn't perhaps what the President is contemplating in issuing this pardon to someone who works for him. I think it's likely to insulate that individual from legal liability going forward for things done in the scope of that person's job. But if the pardon is written broadly, it could include these things that fall outside of the perimeter of that person's job. And then I think you definitely have a circumstance where we're teed up for some kind of legal challenge, maybe one that even goes to the Supreme Court. But again, the power is absolute until the court says it's not.
- [36:36]
Dan Pfeiffer
Given what Trump said, I'll meet the press. Given the people he's appointing, Cash Patel, Pam Bondi, do you think Biden should issue these pardons? Would it be a good idea? And if so, how should he go about doing it?
- [36:48]
Melissa Murray
I think there's definitely a case to be made to do it for individuals within the administration, sort of rank and file workers who are not covered by the immunity decision, who might likely be prosecuted or targeted by the next administration. I think for some of the more high profile people, like Adam Schiff or Liz Cheney, that's a harder question in large part because those individuals don't seem to want pardons, or at least Adam Schiff doesn't, because a pardon suggests that the conduct for which you are being pardoned was actually criminal and they don't believe that their actions were criminal. In fact, their actions are not criminal. And so, you know, there is a kind of signaling that goes on when one receives a pardon. I mean, think about the way we have talked about the Roger Stone pardon, or, you know, Paul Manafort. I think there is some fear that there is a signaling effect. And being lumped in with a group of people to whom pardons had been issued would suggest that you are someone who is a criminal and they're not willing to take that step. But again, it might actually be something we're thinking about for some of these rank and file people who genuinely were just doing their jobs and are likely to be targeted.
- [37:59]
Dan Pfeiffer
Yeah, I wouldn't really turn on this one. The signaling issue is real. I've put myself in the position of what if Donald Trump had issued a bunch of these on the way out the door? We would assume all of that. We assume that was just basically an admission of guilt and very well might have been given the history of the people he pardoned or was likely a pardon in that hypothetical situation. But then also it is, I mean, the Cash Patel situation, and speaking of nominees who seem to be cruising to confirmation is a very dangerous situation. And I mean, you can speak this better than I can, but when a law enforcement goes digging around, if they want to find a crime to charge, they often can find a crime to charge. Because what's the saying about indicting a ham sandwich?
- [38:41]
Melissa Murray
Yeah, like a grand jury will indict a ham sandwich. Like the standard for a grand jury indictment is so low that it's very easy. Yeah, I think that's right. And again, I know we're, I know you've talked about the Hunter Biden pardon on the.
- [38:57]
Dan Pfeiffer
Yeah, I want to get your take on that.
- [38:59]
Melissa Murray
Oh, sure, sure. Again, I think it is very likely that there would have been additional targeting of Hunter Biden in the incoming administration. And so it makes sense. I'm not especially mad at President Biden for doing this. I actually think the outcry among Democrats about the Hunter Biden pardon is largely because it speaks to another impulse that Joe Biden has that I think people would like to be really mad about and for whatever reason just cannot. And that's Joe Biden often says he's not going to do things and then over some period of time manages to reconsider and to prioritize his own personal interest in doing something over the principle that he previously stated. And so, you know, Hunter Biden's pardon, after Joe Biden expressly disclaimed the prospect of a pardon for him also I think reflects the way Democrats might feel about the fact that Joe Biden said he was going to be a one term president and a bridge to the future and then ultimately decided to run again when he likely should not have. And you know, now we are on the precipice of a second Trump administration. I mean, I think that's really what has people mad. Not the pardon itself, but this idea that, that it kind of speaks to a personal proclivity that is just not great and has actually been harmful in some way.
- [40:27]
Dan Pfeiffer
Yeah, I've really sort of gone through a process on this. Before the election. I said I sort of thought to myself, he should definitely pardon his son. Right. Especially I Was in my head, it's like, Kamala Harris wins. He stepped aside. He did this. Let him have this. And then when he did it, I was initially mad at the way he did it. I was mad at the timing. I was mad at that. You just sort of.
- [40:48]
Melissa Murray
I broke that news like, I was the one on msnbc, like, just filling in for someone after Thanksgiving, and they're like, by the way, there's some breaking you. I'm like, really?
- [40:56]
Dan Pfeiffer
Right. On a Sunday night without. After Thanksgiving, without explaining it or defending it. Right. And that put the Democratic Party in a tough. His defender. People who want to defend him put a tough position because he did not articulate his reason. I thought that was sort of political moment.
- [41:09]
Melissa Murray
Well, he did issue the statement.
- [41:12]
Dan Pfeiffer
Right. But you sort of like, in. We are. This is not, you know, 1928. Like, you got to go on camera and defend it right away. And he has paid, to the extent that he can pay a political price. Or there's a poll out this week that shows that 2 in 10Americans support the pardon.
- [41:26]
Melissa Murray
Yeah.
- [41:26]
Dan Pfeiffer
When I think that number could be higher if he had gone out and defended it and expanded as he wrote in the thing. Right. As a president and a father. And the more I thought about this, if I was sitting there with the power to keep my son out of prison for a nonviolent crime for which I believed he had been prosecuted for primarily because he was my son, I would do the same thing for my son, my daughter. Like, I would have done that. And I think you could probably explain that to people. Maybe that's right. Maybe that's wrong. But the reason why people are mad. You're right about this. It's a proxy for. And I think this is my initial reaction, too. It's that people are mad at Biden. Democrats are mad at Biden for the position that he put us in in this election by running for reelection and then waiting a month.
- [42:07]
Melissa Murray
Well, prioritizing his own personal interests over principal or party. And I'm gonna catch strays from all the fans who. I do think that's what people are mad about. Like, I think people understand, as a father, why you would do this. I think people understand that this was, like, the most uncomfortable Thanksgiving in Nantucket ever with Jill and Hunter, like, just on him. I think the statement. Also, I think Hunter had something to do with the statement. Like. Like, not all of that is Joe Biden's voice. I think. I think some of that is very clearly coming from the family. I just imagine Joe Biden, like, that Ben Affleck meme, like, you know, on the porch after Thanksgiving, furiously smoking because he is like he has been getting it all weekend. And yeah, this is the output. But I don't think that's why people are mad and I don't think that's why people don't support this pardon. It's something bigger.
- [42:58]
Dan Pfeiffer
Do you think this is a pardon that could be challenged?
- [43:01]
Melissa Murray
Again, the Supreme Court has already said that the pardon power is, but it's written broadly. It's written very broadly. I mean, it's a 10 year span. And yeah, I think it could be challenged, but I think it's unlikely to be challenged. And I think if it were to go to the Supreme Court, I think this is pretty airtight. I think the court would have to really go back on some of its prior precedents talking about pardons, including the immunity decision, in order to undo this.
- [43:30]
Dan Pfeiffer
Yeah, I would also, it would also be remiss of us, not to mention the fact in any conversation about pardons that Joe Biden's going to issue is that Donald Trump has pledged once again to issue pardons for the January six riders when he gets into office.
- [43:42]
Melissa Murray
Well, I mean, I think this is something Joe Biden really should get on right now, not the January 6th protesters and their pardons, but the clemency power is woefully underutilized by presidents. And there are a lot of people, low level drug offenders in federal prison, people who are hemmed up on conspiracy charges, like women who have conspiracy charges because they may have been around while their boyfriend was doing major kingpin stuff that happens all the time. And there are lots of people in federal prison who could benefit from the kind of rehabilitative and redemptive instinct that has benefited Hunter Biden and will likely benefit these January 6th protesters. And I think this is the moment not just to preemptively pardon those in the administration who are likely to be targeted, but to use the clemency power to meaningfully affect the lives of a lot of other people, many of whom are black and brown. I think, you know, one of the reasons, and again, this is just me riffing, I think one of the reasons that Donald Trump did better than expected with some constituencies, including black men, is that he actually used the pardon power a lot for Kwame Kilpatrick, the embattled mayor of Detroit who had been convicted. I mean, that stuff, I think is actually meaningful in communities where the impact of the criminal justice system is deeply and keenly felt.
- [45:02]
Dan Pfeiffer
And not to mention he worked with one of the most famous people in the world on many of those pardons. U.S. pardon attorney Kim Kardashian. Right. It was. It was on multiple episodes.
- [45:10]
Melissa Murray
Kim is a Kardashian for this, but. Yes.
- [45:13]
Dan Pfeiffer
Yeah, I mean, I mean, there's a. There was a lot of coverage in social media. There was her in the White House. It was on literally multiple episodes. It was a season arc on Meeting the God. Keep up with the Kardashians.
- [45:25]
Melissa Murray
That is a beautiful thing that you can do in a community like literally scarred by its associations with the criminal justice system. I mean, a redemption story that could be really important for Democrats going forward.
- [45:48]
Jon Favreau
Pod Save America is brought to you by ExpressVPN. Have you ever browsed in incognito mode? It's probably not as incognito as you think. Google recently settled a $5 billion lawsuit after being accused of secretly tracking users in incognito mode. Google's defense Incognito does not mean it visible. In fact, all your online activity is still 100% visible to a ton of third parties unless you use ExpressVPN. ExpressVPN reroutes 100% of your traffic through secure encrypted servers, so third parties can't see your browsing history. It also hides your IP address, making it extremely difficult for third parties to track your online activity. Not only is ExpressVPN easy to use, but it also works on all types of devices. This is important. You don't you know you're in a hotel when you're traveling and you're hooking up to the hotel wifi. Anyone could get into that. You don't want people knowing exactly what you're searching for. Protect your online privacy today by visiting expressvpn.com crooked that's ex P R e s and you can get an extra three months free. Expressvpn.com Crooked let's face it. This election proved we're living on two different Internets, which has resulted in two different realities. Algorithms have trapped us in our own information bubbles, and as if things couldn't get weirder, Elon Musk is basically running the American government. Not ideal. I'm Jon Favreau, host of the Offline podcast with Max Fisher. And despite the name of the show, it's clear that none of us are actually offline. Definitely not me and Max. Every week we're breaking out of our digital echo chambers to better understand the right wing media machine and grabbing our shovels to rescue our fellow Americans who've fallen down the rabbit hole that Elon Musk helped dig. We cover everything from the rise of the manosphere to the media personality shaping our feeds and our elections. It's a deep dive into the Internet, but without the trolls and the pop up ads. Doesn't that sound nice? Search offline, wherever you get your podcasts and on our YouTube channel. Now.
- [47:59]
Dan Pfeiffer
This is something that has been eating at me since the election. I've been meaning to talk to someone smart about it. I now have you here. So I'm going to use podcast co host privilege to get into this. But think about it this way, and this is a very painful way to look at it. But if there had just been a shift of two points in Michigan, Pennsylvania and Wisconsin, Donald Trump could very well be headed to prison instead of the White House. Now, it probably seems bizarre to the average American, not that I consider myself the average American, but should winning an election really be a get out of jail free card? So I wanted to go through with you, who is once again an actual expert, what is going to happen with Trump's criminal cases? And I wanted to start with the crimes for which Trump has already been convicted. The hush money trial in Manhattan and Trump's attorneys are trying to dismiss the conviction. Manhattan DA Alvin Bragg laid out some alternative scenarios, including treating Trump like he's dead. Can you explain to us lay people what is happening there?
- [48:50]
Melissa Murray
Okay, so Alvin Bragg, I wanna be really clear about this. Alvin Gragg is standing on business and defending his conviction. So the first thing that he has been very clear about with Justice Marchand is that dismissing this indictment after a trial and a guilty verdict because the defendant later won an election would actually damage the judicial system. It would undermine the public's perception that the system is fair because it would be like winning an election is a get out of jail free card. So he has made that argument. Nevertheless, I think there is broad consensus among law school professors, constitutional law scholars, that you can't have a state criminal prosecution of a president while he's in office for a number of different reasons. Some of this has been fleshed out by the Supreme Court, but in the context of civil cases, but criminal cases where the stakes are just higher.
- [49:40]
Dan Pfeiffer
You mean the Paula Jones case?
- [49:42]
Melissa Murray
Yes, Clinton versus Jones. And the stakes are just higher in a criminal case. So, I mean, I think there is an argument to be made that while he is president, that can happen. Now, to be clear, Alvin Bragg has been very straightforward that he is not the president right now. He is the president elect. There is no immunity for the President Elect. And. And for that reason, you could have the sentencing happen now in advance of January 20th, and then you could sort of hold the sentence and the fulfillment of it in abeyance until the end of his term. So Alvin Bragg lays out two possible paths for this. So, again, one is just suspending the case until Trump's term is over, maybe sentencing him now and suspending that, the completion of the sentence until his term in office is over, or alternatively, not sentencing him now and holding all of it over until after the completion of his sentence. All of that, you know, are possibilities. There's a second option, and this goes to your Treat him like a dead man point. The prosecutors, and that's kind of an interesting point. They suggested that Judge Marchand could look to what is known as abatement, which is a procedure by which when a defendant dies after a verdict has been issued, but other aspects of the case remain pending, you just sort of abate the prosecution, and that preserves the conviction, but ends any further proceedings. And I think that's sort of the last best scenario for Alvin Bragg because it makes clear that this was a sound conviction. It holds as a conviction. It just kind of kills everything else, including the sentencing going forward. So he's offered a couple of different paths for Judge Slash justice merchandise. He's actually justice because he's a New York trial.
- [51:27]
Dan Pfeiffer
Oh, sorry.
- [51:28]
Melissa Murray
Justice. No, I mean, nobody knows. It's, like, kind of vague.
- [51:32]
Dan Pfeiffer
I should. I. There was a period of time in my life when I knew that, and I had wiped it from my brain.
- [51:36]
Melissa Murray
Well, I mean, as you should. But I think, again, that's sort of the tldr of it. And I think the real bottom line is Alvin Bragg is really working to preserve this verdict and the conviction that.
- [51:49]
Dan Pfeiffer
Flows from it, as he should.
- [51:51]
Melissa Murray
Yeah.
- [51:52]
Dan Pfeiffer
It's insane that they would dismiss the conviction because they didn't know he was going to be president when they did it. Like, that's insane. It is insane. Like, it is a. It makes that will. That is one of the things that makes zero sense to human beings. He committed a crime. A jury of his peers heard the evidence, they rendered a verdict. And then afterwards, we're like, oh, sorry, guys. We didn't realize how important he was, so we're going to take that one off the books. Like, that would be insane.
- [52:16]
Melissa Murray
Yeah.
- [52:16]
Dan Pfeiffer
And so I certainly hope Justice Mershan or the judges who are hearing this do not do that, because that is nuts. Okay. I'm also curious about the Fulton county prosecution. This one sort of got lost in A whole bunch of minutiae and hearings and such, but it is a local, not a federal, case. Trump can't fire Fani Willis or director not to prosecute him. What's the latest with that case? Is it possible they could just put it on pause until Trump's out of office?
- [52:44]
Melissa Murray
Well, I mean, that case has already been kind of mired in all of this procedural stuff. So you'll recall that Willis had all of those ethics concerns because she had appointed her then boyfriend to be part of the prosecution team. She was told by the trial judge that she could stay on the case as long as her boyfriend resigned from it, and that happened. But then a state appeals court was scheduled to review that question of whether or not she could remain on the case. They were scheduled to consider whether she could do so this month, but they recently canceled that hearing after the election because Donald Trump won, and Trump obviously denies wrongdoing here. What happens next, I think, is really unclear. If the appeals court decides that Fani Willis is disqualified and cannot remain on the case, then the prosecution goes to a state board of prosecutors who decide whether or not the case is going to continue. And if it does continue, they'll assign a new prosecutor. This has typically been a scenario where cases go to die. Like, I mean, there are currently cases pending, one involving Fani Willis, from which she was disqualified because she had held a fundraiser or participated in a fundraiser for someone who was involved in the case. That case was never staffed up with a prosecutor. It took a very long time for that to be worked out. So that's a place where a delay could be indefinite and, you know, could be the case could be killed entirely, or the effort to find a new prosecutor could delay it substantially. Even absent those considerations, there's still the looming question of the Supreme Court court's decision in the immunity case, which does impact the Fani Willis prosecution, because much of that conduct for which Donald Trump and others were indicted occurred while he was president. And so you still, you have the same kind of questions that attend the Jack Smith prosecutions and the January 6th election interference case. You know, is this within the scope of the president's duties? Is it the outside perimeter? Like, what's official, what's unofficial? So. So I just don't have a lot of faith that there's much that's going to happen in that case.
- [54:54]
Dan Pfeiffer
So don't circle 2029 on my calendar a year to be in Atlanta.
- [55:00]
Melissa Murray
I don't think this is. Yeah, I mean, this is. I would not buy a ticket to Atlanta, necessarily.
- [55:05]
Dan Pfeiffer
Okay. All right. For this reason at least, there are a lot of other good reasons to go to Atlanta. Okay. Special counsel Jack Smith plans to resign before Trump can fire him. And so both the classified documents in January 6th cases, which at the time seemed kind of open and shut before the Supreme Court got invol, will simply disappear forever without Trump ever facing accountability. What do you make of Smith's decision? Why is he resigning?
- [55:27]
Melissa Murray
I think he's going to resign because he otherwise would be fired by Donald Trump on January 20th. So this sort of allows him to step back, he gets out of it. It allows the prosecution to be wound up and perhaps a report to be issued by the doj. So there's time to prepare that report and then for the Attorney General to issue it, maybe issue it to the public. So I think that might be part of the calculus here. Those cases were dismissed without prejudice, which means that the judges have made no statement about the merits of the underlying charges or whether the prosecution would have been successful or unsuccessful in establishing their case. So, you know, that is something, you know, maybe a Democratic president could take this up again in the future, although I think it's highly unlikely. I think if we get to a Democratic president in 2028, I think this country, I would hope, would be willing to just like, turn the page on this episode and just like, just be done with it and like, move on and like, to something better. I would hope.
- [56:30]
Dan Pfeiffer
I mean, I know this is just tilting at windmills here, but it is just.
- [56:33]
Melissa Murray
I know, I know.
- [56:34]
Dan Pfeiffer
But he's gonna get away with all of it. I mean, I mean, he, like, he may face political accountability in the end here, the Republican Party may end up facing political accountability in the end here, but it's just that you can win an election and all, and all your crimes go away because you can fire like, and this is Jack Smith seems like to be a man beyond reproach, but stay on and get fired. Make Trump fire the special counsel. Right. At least get the echo of Watergate, make him take the action to dismiss the crimes against him like that. Like that's what I would do if I was.
- [57:07]
Melissa Murray
Maybe he's literally winding this up and heading back to the Hague and the hopes that he will not be extradited by Kash Patel.
- [57:14]
Dan Pfeiffer
Maybe, maybe. I mean, maybe he is busy packing his boxes to move to a non extradition country. That's exactly right. Maybe that is what he said. I guess he does. It's easy for me to say that I would stay on to get Fired when I am not specifically mentioned, to my knowledge, in Keshe Patel's book. So maybe that is what he's doing. I do have to ask because I know Merrick Garland in his time as a judge was sort of revered as one of the all time greats, but it really feels to me like he really screwed the pooch here. If he had started the January 6 investigation earlier, we could have at least had a resolution before election day. He waited until basically Liz Cheney and Adam Kinzinger bullied him into doing a prosecution here. What is your take on his approach? Has he damaged his legacy here?
- [58:00]
Melissa Murray
I mean, I think Merrick Garland as a judge was one of the great. Yeah, he was a great judge in large part because he was deliberative, he was contemplative. And those qualities that made him a great judge made him a terrible Attorney General for this moment. And, you know, that's unfortunate. I think a different Attorney General would have taken a different tack here. I mean, the strategy of pursuing the rank and file January 6th protesters first and then sort of going up the chain and then starting late on some of those rank and file protesters. I mean, like, it was just. It was all gonna come down to the election. And maybe that was by design. Like maybe they felt that this should have been something that was sort of left to the voters to decide, and the voters have decided. But there's also an argument to be made that a different Attorney General might have started and gone top down. And that would have been a more effective strategy, at least for resolving. The one thing that really strikes me as deeply problematic about these cases not getting to tr is that trials are a mechanism for surfacing and ventilating information to the public. And I think the public had a right to hear the case against Donald Trump and to judge whether the government had met its burden to establish guilt beyond a reasonable doubt. Like some would say that the January 6th special committee did some of that, had a kind of public airing of that.
- [59:32]
Dan Pfeiffer
But.
- [59:32]
Melissa Murray
But that is really what a trial is for. And I think the public was just served by not having that opportunity.
- [59:40]
Dan Pfeiffer
Yeah. I think when the history of this time is written, Merrick Garland is not going to be covered in glory.
- [59:48]
Melissa Murray
No.
- [59:49]
Dan Pfeiffer
Because he just was not the right person for this moment. Right. He is like, you know, to borrow a phrase from the Godfather, he is not a wartime conciliary. Right. This was. He does it. He. And I think Biden to a certain extent suffers from a similar challenge as they were constitutionally and experientially not they were institutionalists prepared for institutionalists for this moment against someone like Donald Trump. They thought he was going to go away on his own. Mitch McConnell made the same mic as this. If you could define this period in one thing, it's that a bunch of institutionalists making the wrong decisions about or misjudging where politics are going and suffering catastrophic consequences for it.
- [60:24]
Melissa Murray
Yeah, I think that's a great point. I think they did expect he lost. He's going to touch his tail between his legs and go off. No, that's not this guy. This guy has another arc in him and we're going to see it now. I also think, and this is in the vein of the institutionalists, Joe Biden was, I think, more principally focused on rebuilding the DoJ as an independent agency. And for that, maybe Merrick Garland was the perfect person. And the accountability piece probably didn't get attended to. Like that wasn't top of mind either for the president appointing him, nor for the Attorney General who would take on the charge. The real charge was rebuilding morale and DOJ and making it independent of the White House. We'll see how that works going forward.
- [61:13]
Dan Pfeiffer
There was an interpretation of the 20. I mean, I could honestly talk about this for years, but there was a interpretation in the 2020 election that it was a validation of norms. It was a rejection of norm breakers and anti institutionalists. And I still think back to a conversation we had on this podcast with our very good friend Jen Psaki about being press secretary and that one of the things that President Biden said to her is that it was very important that she do the press briefing on a daily basis, the way it's always been done, because there's always been this discussion about how you change it to make it meet the modern media fire. But Biden wanted to return to norms. And I understand that instinct. It's not wrong. But in hindsight, that's not what that election was about. And the idea, like it was not the DOJ should be independent. I'm not saying it shouldn't be, but there is actual independence. And then there was perception of independence. Following the exact normal process where career prosecutors looked at the evidence and then made a decision was the thing was not the process that actually happened. What actually happened was sort of a political decision that that pursuing Trump would undermine the image of independence. And you were never going to convince a lot of people that the Justice Department was actually independent. So you just gotta do your job the right way, the way it's supposed to be done, and let the consequences fall where they may. And I think this is exactly. It's the same mistake that Jim Comey made with that letter to Congressional Republicans at the end of the election. It was trying to appease the unappeasable with illusion of independence when it is not actually independence, it's actually biased for the purpose of showing independence.
- [62:53]
Melissa Murray
Yeah, I think that's exactly right.
- [62:56]
Dan Pfeiffer
Okay, that unhinged rant for myself is probably a good place to end this. Melissa, thank you so much for joining us.
- [63:03]
Melissa Murray
Wait, I have one more hot take. Can I offer one hot take?
- [63:06]
Dan Pfeiffer
Go, go, go. Jump in. Go, go.
- [63:08]
Melissa Murray
I have been listening to Pots Save America regularly since the election. I was like, I just want to offer.
- [63:14]
Dan Pfeiffer
Oh, did you just, did you just learn about us?
- [63:18]
Melissa Murray
No, more regularly than usual. Like, I mean, now I'm like, I'm tuning in every time.
- [63:22]
Dan Pfeiffer
You always listen to the Friday Pod. You're probably mixing in some love it there periodically. I get it.
- [63:27]
Melissa Murray
Actually. My husband and I binge it on long drives, but we haven't been driving like doing long drives recently. So I've actually been doing it while I work out in the morning. And so I've been watching like much more regularly. I usually just get you all in like two hour chunks, but now it's like I'm on it. So I want to offer just a take. Like, again, I am just riffing. I'm not a real political person, so I'm like, I'm a law professor. But it strikes me, living in New York City that this election, and I know lots of people have talked about how New York City is sort of drifting to the right, certainly in the outer boroughs. And I think that's right. I used to live in Oakland, California. Oakland also had a really interesting election, I think. I think you have said this. I think you're exactly right. This election was marked by real anti incumbency flavor and I think that's exactly correct. But I want to just offer like a different slant on it from the perspective of someone who lives in a blue state and has lived in blue cities. I don't think the interest in Trump, even in New York City, where people are sort of drifting to the red, is a deep seated interest in Donald Trump. I do think it is perhaps a referendum on the failures of blue state, blue city governance. I see this in Oakland where they recalled the mayor and where everyone in Oakland knows that you can live in a fancy neighborhood and pay a shit ton of taxes and you still have to get a private security force to police your neighborhood. Because the police don't come. I think people in New York City feel this way. Like, you are paying a ton of taxes in a blue city in a blue state, and the services are really negligible. Like, you may not feel comfortable sending your kid to public school or the public schools are failing in many respects. The services are not what your compatriots around the country receive in their red states. And, you know, things like the subway are not unsafe, but they are unpleasant in many respects. And so the question I think for a lot of people is like, what is blue city governance like, what does progressive governance mean and why should I expand it to the national level? And I think that's a challenge that Democrats really need to take up in this moment when they are in the wilderness. How can we make blue state, blue city governance appealing? I think this is why Jared Polis gets so much air time, because he's managed to make it look really appealing in Colorado. And I just don't think it's necessarily appealing in all of these other states. It's not that people are abandoning progressive values. I think they just want government to work better than it does. And if the Democratic Party could kind of lean into that, like, how can we make the Democratic Party be the party of doing shit right and better? It would really go a long way to addressing some of these Trump curious voters who drifted in this election. That's just my personal opinion.
- [66:15]
Dan Pfeiffer
That's not a hot take. That's a great take.
- [66:17]
Melissa Murray
Thank you.
- [66:17]
Dan Pfeiffer
That is a great take.
- [66:18]
Melissa Murray
As someone who rides the subject, I.
- [66:20]
Dan Pfeiffer
Mean, I obviously, I have a lot of friends who live in San Francisco and in Oakland and New York and place in Chicago, places like that. And this, you hear this all the time, right? Just disorder, right? Is everything from riding the subway to having to get someone to unlock the anti shoplifting case for your shampoo at cvs, Right?
- [66:40]
Melissa Murray
Dan, did you read that New York Times article about the Chinese Americans in California who drifted to the right? If you, if you just expunged any kind of ethnic markers, it was basically about everyone living in Los Angeles and Oakland and San Francisco who are like, I just want the city to work. That was basically the whole argument. Like, I want crime to be dealt with. I don't want the police to be over policing, but I do want them to be doing some policing. You know, I don't want to park my car and have it bipped when I go to the city Safeway in downtown Oakland. Like, that's what it read to me. And I just, I Don't know. Maybe Ben Wickler, whoever runs the dnc. Like, that seems like something they should get on board with.
- [67:23]
Dan Pfeiffer
Yeah, I think absolutely, that in our analysis of it, that is a big part of, especially those huge shifts in California, New York, New Jersey, places like that. It's worth looking. Okay.
- [67:32]
Melissa Murray
All right. We're not trying to date Republicans. That's not what we're saying. We just want things to work better.
- [67:37]
Dan Pfeiffer
Is that. Is that a thing? I don't even know.
- [67:39]
Melissa Murray
I mean, and we started with Luigi and his mugshot. I think we should end right here. No one's trying to date Republicans. I learned that on hysteria, too.
- [67:46]
Dan Pfeiffer
Okay, a couple of quick things before we go. If you love hearing Melissa on today's show, I would urge you to check out her podcast, Strict Scrutiny with her co hosts, Leah Lippman and Kate Shaw. Every week they break down SCOTUS arguments, no law degree required. In the latest episode, they dive into the court's big case on gender affirming, care for minors. Melissa, anything you'd like to add?
- [68:05]
Melissa Murray
We are so into this moment at the court. I just want to be really clear about it. The court is going to be like a bag of dicks for the next four years, but we are totally committed to making it understandable to you. Pointing out when they are being inconsistent, pointing out when they have emotional support, billionaires. The court is something I think feels really inaccessible. It's not. You've got to get in it. Like, this is where good policy goes to die and. And you gotta be on top of it. So tune in to Strict Scrutiny every Monday.
- [68:38]
Dan Pfeiffer
I love strict scrutiny. Not just on long car drives. I listen to it all the time. Catch Strict scrutiny every Monday wherever you get your podcasts. Also, we just announced new love it or leave it LA dates for spring 2025. Join Lovett every Thursday starting January 9th. He'll be sifting through the week's most important and absurd news stories, skewering the biggest names in politics, and sitting down with a special celebrity guest for a one on one conversation you won't want to miss. We have some big names for the first few shows, including Joel McHale and Rachel Bloom. Head to crooked.comevents to see dates and grab tickets. See you there. That's our show for today. Thanks so much, Melissa, for being here. John and I will be back in your feeds with a new show on Friday morning. Bye, everyone.
- [69:17]
Melissa Murray
Bye.
- [69:17]
Jon Favreau
If you want to listen to Pod Save America ad free or get access to our subscriber Discord and exclusive podcasts, Consider joining our Friends of the pod community@crooked.com friends or subscribe on Apple Podcasts directly from the Pod Save America feed. Also, be sure to follow Pod Save America on TikTok, Instagram, Twitter, and YouTube for full episodes, bonus content, and more. And before you hit that next button, you can help boost this episode by leaving us a review and by sharing it with friends and family. Pod Save America is a Crooked Media production. Our producers are David Toledo and Saul Rubin. Our associate producer is Farah Safaree, Ree Churlin is our executive editor and Adrian Hill is our executive producer. The show is mixed and edited by Andrew Chadwick. Jordan Cantor is our sound engineer with audio support from Kyle Seglin and Charlotte Landis. Writing support by Hallie Kiefer Madeline Herringer is our head of news and programming. Matt DeGroat is our head of production. Andy Taft is our Executive assistant. Thanks to our digital team Elijah Cohn, Haley Jones, Phoebe Bradford, Joseph Dutra, Ben Hethcote, Mia Kelman, Molly Lobel, Kirill Pelaviev and David Toles.